Office of the Australian Information Commissioner - Home

Australian Government - Office of the Australian Information Commissioner
Australian Government - Office of the Australian Information Commissioner

Main menu

Part 4 — Charges for providing access

pdfPrintable version584.79 KB

Version 1.6, December 2016

4.1 An agency or minister may impose a charge for providing access to a document under s 29 of the FOI Act. The charge must be assessed in accordance with the Freedom of Information (Charges) Regulations 1982 (Charges Regulations).

4.2 The Information Commissioner has published an agency resource that helps decision makers identify the steps in calculating a charge. The resource is available at www.oaic.gov.au.

Guiding principles

4.3 An agency or minister has a discretion to impose or not impose a charge, or impose a charge that is lower than the applicable charge, under reg 3 of the Charges Regulations. In exercising that discretion, the agency or minister should take account of the ‘lowest reasonable cost’ objective, stated in the objects of the FOI Act (s 3(4)):

… functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.[1]

4.4 Agencies and ministers should interpret the ‘lowest reasonable cost’ objective broadly in imposing any charges under the FOI Act. That is, an agency or minister should have regard to the lowest reasonable cost to the applicant, to the agency or minister, and the Commonwealth as a whole. Where the cost of calculating and collecting a charge might exceed the cost to the agency to process the request, it would generally be more appropriate not to impose a charge.[2] In assessing the costs of calculating and collecting a charge, agencies should also take into account the likely costs that may be incurred by the agency, as well as other review bodies, if the applicant decides to seek further review.

4.5 The objects of the FOI Act guide the following principles relevant to charges under the FOI Act:

  • A charge must not be used to unnecessarily delay access or discourage an applicant from exercising the right of access conferred by the FOI Act.
  • Charges should fairly reflect the work involved in providing access to documents on request.
  • Charges are discretionary and should be justified on a case by case basis.
  • Agencies should encourage administrative access at no charge, where appropriate.
  • Agencies should assist applicants to frame FOI requests.
  • Agencies should draw an applicant’s attention to opportunities available to the applicant outside the FOI Act to obtain free access to a document or information (s 3A(2)(b)).
  • A decision to impose a charge should be transparent.

4.6 An agency should ensure that the notice to an applicant of a charge fully explains and justifies that charge. Implicit in the lowest reasonable cost objective is a requirement for sound record keeping so that an agency’s documents can be readily identified and found when an FOI request is received (see [4.23] below).

Back to Contents

Charges framework

The FOI Act and the Charges Regulations

4.7 The FOI Act and Charges Regulations set out the process for when an agency or minister decides to impose a charge for processing a request or for access to a document to which a request relates.

4.8 If an agency or minister decides to impose a charge, the agency or minister must provide the applicant with a written notice outlining the preliminary assessment of the charge and all the matters listed in s 29(1) (see [4.48]–[4.50] below).

4.9 In notifying an applicant of a charge or estimated charge, the agency or minister may require that the applicant pay a deposit (see [4.66]–[4.67] below). Where an applicant receives a notice of preliminary assessment advising that a charge is payable, and does not object to the estimated charge, they may decide to pay the deposit or the full estimated charge.

4.10 Where the applicant objects to the estimated charge, they may apply in writing to the agency or minister for the charge to be corrected, reduced or waived (s 29(4)). The application must:

  • be made within 30 days of receiving the notice or such further period as the agency or minister allows (s 29(1)(f)), and
  • should set out the applicant’s reasons for contending that the charge has been wrongly assessed or should otherwise be reduced or waived (s 29(1)(f)(ii)).

4.11 An applicant may, in objecting to the estimated charge:

  • postpone payment of the deposit or estimated charge until the agency makes a decision on the amount of charge payable, or
  • pay the deposit or the estimated charge pending a decision on reduction or waiver of the estimated charge. This action requires the agency to continue processing the FOI request while considering the application for reduction or waiver of the charge. If the agency or minister decides to reduce or to waive the charge, the deposit should accordingly be reduced or refunded.

4.12 If the applicant does not respond in writing to the agency or minister’s notice of preliminary assessment of charges within 30 days, or such other period allowed by the agency or minister, the FOI request is taken to have been withdrawn (s 29(2) (see [4.48] below)).

4.13 Upon receiving the applicant’s reasons for contesting the charge, the agency or minister must, within 30 days or earlier if practicable (s 29(6)), provide a written notice of decision to the applicant as to whether the charge will be imposed, reduced or waived. In making its decision, the agency or minister must take into account whether payment of the charge would cause financial hardship, or whether giving access without charge or at a reduced charge would be in the public interest (see [4.75]–[4.87] below) (ss 29(4)–(5)).

4.14 Where the agency or minister does not provide its decision to the applicant within 30 days, it is taken that a decision is made to impose the charge specified in the notice of preliminary assessment (s 29(7)).

4.15 If the decision is to impose or reduce the charge, the notice of decision must also set out the reasons for the decision and the applicant’s right to seek internal or IC review of that decision or to complain to the Information Commissioner and the procedure for doing so (ss 29(8)–(9)).

4.16 Other relevant provisions in the FOI Act and Charges Regulations concerning the imposition of charges are summarised in Table 1.

Table1: Charges – summary of main legislative provisions

Legislative provision

Operation

Regulation 3

An agency or minister may decide that an applicant is liable to pay a charge at the rate fixed in the Schedule.

Regulation 5

There is no charge for providing access to an applicant’s personal information, or for providing access outside the statutory processing period unless the Information Commissioner has extended that period (see [4.37]-[4.42] below).

Regulation 9

In issuing a notice of a charge under s 29, an agency or minister may provide an estimate (based on the Schedule) if the agency or minister has not taken all steps necessary to make a decision on the request.

Regulation 10

An agency or minister may adjust an estimated charge, after taking all steps necessary to make a decision on a request.

Section 11A and Regulation 11

An applicant shall pay the required charge before being given access to a document, except for a charge for an officer to supervise inspection, hearing or viewing of a document.

Regulation 12

An agency or minister may require an applicant to pay a deposit of $20 for an estimated charge of between $25 and $100 or 25% of the estimated charge if greater than $100.

Section 31

If an applicant is notified during the statutory processing period that a charge is payable, the processing period is extended until the applicant pays the charge or is notified by the agency following a review that no charge is payable.

Charges are discretionary

4.17 Agencies and ministers should be mindful of their discretion:

  • not to impose a charge for the staff time and resources expended in processing an FOI request (reg 3), independently of any request from an applicant requesting that a charge be reduced or waived
  • to impose a lower charge than the charge specified in the Charges Regulations (reg 3), and
  • to reduce or waive a charge upon receiving a request from the applicant (s 29(4)) (see [4.70]–[4.74] below).

4.18 In applying the Schedule to the Charges Regulations, agencies and ministers should bear in mind that the Schedule was first written in 1982, and that some specific chargeable activities may be outmoded. For example, the use of agency computers to produce copies of electronic documents is nowadays usually a negligible expense. Agencies and ministers should be guided by the ‘lowest reasonable cost’ objective in the FOI Act in deciding whether a charge specified in the Charges Regulations is warranted.

Charges that may be imposed

4.19 The charges that may be imposed by an agency or minister are specified in the Schedule to the Charges Regulations. Part I of the Schedule specifies charges related to making a decision on a request and Part II specifies charges for giving access to a document. The charges are listed in Table 2 below.

4.20 There is no charge for making:

  • an application to an agency or minister for access to a document under Part III of the Act
  • an application for amendment or annotation of a personal record under Part V of the Act
  • an application for internal review of a decision under Part VI of the Act
  • an application for review by the Information Commissioner under Part VII of the Act
  • a complaint to the Information Commissioner under Part VIIB of the Act.

4.21 An agency or minister cannot impose a charge:

  • for giving access to an individual’s own personal information under the FOI Act (reg 5(1)), or
  • for giving access to a document outside the statutory processing period, including any extensions of time made under ss 15(6), 15(8), 15AA or 15AB (not s 15AC).

This is discussed further at [4.37]–[4.42].

Table 2: Charges listed in Schedule to the Charges Regulations
Activity itemChargeSchedule

Search and retrieval: time spent searching for or retrieving a document

$15.00 per hour

Part I, Item 2

Decision making: time spent in deciding to grant or refuse a request, including examining documents, consulting with other parties, making deletions or notifying any interim or final decision on the request

First five hours: Nil

Subsequent hours: $20 per hour

Part I, Item 5

Electronic production: retrieving and collating information stored on a computer or on like equipment

An amount not exceeding the actual cost incurred in producing the copy

Part I, Item 3 Part II, Items 4, 4A, 6

Transcript: preparing a transcript from a sound recording, shorthand or similar medium

$4.40 per page of transcript

Part I, Item 4 Part II, Item 7

Photocopy: a photocopy of a written document

$0.10 per page

Part II, Item 2

Other copies: a copy of a written document other than a photocopy

$4.40 per page

Part II, Item 3

Replay: replaying a sound or film tape

An amount not exceeding the actual cost incurred in replaying

Part II, Item 5

Inspection: supervision by an agency officer of an applicant’s inspection of documents or hearing or viewing an audio or visual recording

$6.25 per half hour (or part thereof)

Part II, Item 1

Delivery: posting or delivering a copy of a document at the applicant’s request

Cost of postage or delivery

Part II, Item 8

Charge for search or retrieval time

4.22 An agency or minister can charge for ‘the time spent … in searching for or retrieving the document’ (Charges Regulations, Schedule, Part I, Item 2). This encompasses time spent:

  • consulting relevant officers to determine if a document exists
  • searching a file index to establish the location of a document
  • searching a file to locate a document
  • physically locating a document and removing it from a file

4.23 An underlying assumption in calculating search and retrieval time is that the agency or minister maintains a high quality record system. Search and retrieval time is to be calculated on the basis that a document will be found in the place indicated in the agency’s or minister’s filing system (reg 2(2)(a)) or, if no such indication is given, in the place that reasonably should have been indicated in the filing system (reg 2(2)(b)). The ‘filing system’ of an agency or minister should be taken as including central registries as well as other authorised systems used to record the location of documents.

4.24 Time used by an officer in searching for a document that is not where it ought to be, or that is not listed in the official filing system, cannot be charged to an applicant.[3] In summary, applicants cannot be disadvantaged by poor or inefficient record keeping by agencies or ministers.

4.25 Search and retrieval time does not include time spent by agency officers, other than the decision maker, discussing and reviewing the results of search and retrieval activities.[4]

Charge for decision-making time

4.26 An agency or minister can charge for the time spent by the decision maker:

…in deciding whether to grant, refuse or defer access to the document or to grant access to a copy of the document with deletions, including the time spent

  1. in examining the document;
  2. in consultation with any person or body;
  3. in making a copy with deletions; or
  4. in notifying any interim or final decision on the request (Charges Regulations, Schedule, Part I, Item 5).

4.27 Item 5 further provides that there is no charge for the first five hours of decision-making time.

4.28 Other actions not specifically listed in Item 5 could also be included in the charge for decision making. Examples are the time spent by an agency in preparing either a schedule of documents or a recommendation for the authorised decision maker. On the other hand, the time of other officers whom the decision maker consults in the course of making a decision would not ordinarily fall within that definition, as the authorised decision maker is expected to have the necessary skill and understanding to decide access issues.

4.29 An underlying assumption in calculating decision-making time is that the officers involved in this process are skilled and efficient. For example, it is assumed that an officer who is deciding whether an exemption applies has appropriate knowledge of the FOI Act and the scope of the exemption provisions.

4.30 It is important to note that the Charges Regulations stipulate a single hourly rate that applies regardless of the classification or designation of the officer who undertakes the work involved (s 94(2)(b)). The Charges Regulations do not stipulate a method for charging for part of an hour of decision-making time. If such a charge is to be imposed, it should appropriately be calculated on a proportionate basis.

Charge for actual costs incurred by agency

4.31 An agency or minister can impose a charge that does not exceed the actual costs incurred by the agency or minister in:

  • retrieving and collating information stored on a computer or on like equipment (Charges Regulations, Schedule, Part I, Item 3)
  • retrieving and collating information stored on a computer and using the computer or other equipment to make deletions from the record of the information (Schedule, Part II, Item 4)
  • producing a computer tape or disk (Schedule, Part II, Item 4A)
  • arranging for an applicant to hear a recording or view a stored image (Schedule, Part II, Item 5)
  • producing a copy of a recording, film or videotape (Schedule, Part II, Item 6)
  • posting or delivering a document to an applicant, as requested by the applicant (Schedule, Part II, Item 8).

4.32 Modern digital technology has greatly reduced the cost of replicating electronically stored documents, recordings and visual images. This should be reflected in an agency’s decision making in relation to considering if or how charges should apply. Agencies and ministers should as far as practicable make use of the latest technology to give applicants access to documents at the lowest reasonable cost.

4.33 An agency or minister must keep a full and accurate record of actual costs incurred to enable the Information Commissioner, when undertaking a review, to examine whether a charge is justified.

Charge for access in an alternative form

4.34 An applicant who requests access in a particular form is entitled to receive it in that form, unless any of the exceptions in s 20(3) applies (see Part 3 of these Guidelines). If an alternative form of access is given in accordance with s 20(3), a higher charge cannot be imposed than if access had been given in the form requested by the applicant (s 20(4)).

4.35 If access to a document can be provided in two or more forms and an applicant does not specify a particular form of access, the charge imposed cannot be higher than if access had been given in the form to which the lowest charge applies (reg 8).

Charge for access to exempt document

4.36 It may be open to an agency or minister, in response to an FOI request, to provide access to a document to which the applicant is not entitled under the Act. For example, an agency can provide access to a document for which an exemption claim could be made (s 3A(2)(b)). If access is given in response to a request, the Charges Regulations apply as though the applicant was entitled to be given access (s 94(3)), noting that it is always open to an agency or minister to use their discretion not to impose any charge.

Back to Contents

Exceptions to imposition of charges

Applicant’s personal information

4.37 No charge is payable if an applicant is seeking access to a document that contains their own personal information (reg 5(1)). The same rule applies under Australian Privacy Principle (APP) 12 of the Privacy Act, which requires an agency that holds personal information about an individual to give the individual access to the information on request and further provides that the agency cannot impose a charge for providing access.[5]

4.38 Section 4(1) of the FOI Act says that ‘personal information’ has the same meaning as in the Privacy Act, which provides in s 6:

personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

  1. whether the information or opinion is true or not; and
  2. whether the information or opinion is recorded in a material form or not.

4.39 In essence, personal information is information about an identified or identifiable individual. The information may also be publicly known. (See Part 6 of these Guidelines for further discussion of the definition of ‘personal information’.)

4.40 A document that contains personal information of an applicant can fall within this exception even if the document also contains non-personal information. An example is the decision in ‘CN’ and Australian Customs and Border Protection Service, where it was found that no charge could be imposed in relation to a request for CCTV footage that clearly identified the applicant.[6] If the personal information forms a small part of a document and an agency or minister can reasonably be expected to expend extra time or resources in providing access to the entire document, it may be appropriate in that situation for the agency or minister to impose a charge for providing access to the portion of the document that does not contain personal information.[7] Before doing so, the agency or minister should consult with the applicant about narrowing the scope of the request to that part of the document that contains the applicant’s personal information.

Decision not made within statutory time limit

4.41 Section 15(5)(b) of the Act provides that an applicant is to be notified of a decision on a request not later than 30 days after an agency or minister received the request. This period can be extended by an agency or minister to facilitate consultation with an affected third party or foreign government or organisation (ss 15(6), (8)), by agreement with the applicant (s 15AA), or by the Information Commissioner (s 15AB). If an applicant is not notified of a decision on a request within the statutory time limit (including any extension of time), the agency or minister cannot impose a charge for providing access, even if the applicant was earlier notified that a charge was payable (regs 5(2), (3)). If a deposit was paid by the applicant it is to be refunded (reg 14).

4.42 If an agency fails to make a decision within the applicable statutory time limit, resulting in a deemed decision, the Information Commissioner may grant an extension of time under s 15AC on the agency’s application. In these circumstances the agency may proceed to make an actual decision but cannot impose a charge because the decision is still regarded as out of time for charging purposes (regs 5(2), (3)).

Decision-making time

4.43 There is no charge for the first five hours of time spent in making an access decision (Charges Regulations - Schedule, Part I, Item 5). There is no equivalent provision for the search and retrieval of documents.

The Goods and Services Tax

4.44 The Goods and Services Tax (GST) is not payable on FOI charges. Section 81-5 of A New Tax System (Goods and Services Tax) Act 1999 provides that GST applies to payments of Australian taxes, fees and charges, exceptthose excluded from GST in a written determination of the Commonwealth Treasurer. Charges under the FOI Act are included in the Treasurer’s Determination, last made on 15 December 2010.[8]

Back to Contents

Agency charging procedures

4.45 Agencies may develop and publish on their website their own internal procedures for imposing charges, consistent with the FOI Act, the Charges Regulations and these Guidelines. This will assist the public to be advised of the agency’s practice or approach in imposing charges, and the supporting evidence the agency requires from an applicant who requests a reduction or waiver of a charge.

4.46 Agencies should give applicants an early indication of the likely cost of their requests and an opportunity to modify or withdraw requests if they wish. The option of providing administrative access to information without payment of a charge could also be discussed with an applicant.[9]

4.47 Agencies should assist applicants to identify the specific documents they are seeking, to enable them to focus their request on the documents required and minimise potential charges.[10] This approach will also help agencies to avoid unnecessarily expending resources on searching and retrieving documents that the applicant does not actually want. Where the information requested is freely available elsewhere (such as on the agency’s website or in a publicly released report), agencies should draw the applicant’s attention to the location of this information and check with the applicant as to whether this satisfies their request (see [4.5] above).

Back to Contents

Making a decision to impose a charge: notifying, estimating, calculating, imposing and collecting charges

Notifying a charge

4.48 Section 29(1) provides that an applicant must be given notice in writing when an agency or minister decides under the Charges Regulations that the applicant is liable to pay a charge. The notice must specify:

  1. that the applicant is liable to pay a charge
  2. the agency or minister’s preliminary assessment of the charge and the basis of calculation
  3. the applicant’s right to contend that the charge is wrongly assessed or should be reduced or waived
  4. that the agency or minister, in considering any such request, must take into account whether payment of the charge would cause financial hardship to the applicant or the person on whose behalf the application was made, and whether giving access to the document would be in the public interest
  5. the amount of any deposit payable by the applicant (see also reg 13)
  6. the obligation on the applicant to agree to pay the charge, dispute the charge, seek a waiver or reduction, or withdraw the FOI request within 30 days or such further period allowed by the agency or minister, and
  7. that the FOI request will be taken to have been withdrawn if the applicant fails to respond within that period.

4.49 To assist an applicant, an agency or minister may include other information in a notice — for example, that:

  • the agency or minister, in deciding whether to waive or reduce a charge, can take into account matters other than financial hardship and the public interest in disclosure (s 29(5))
  • a deposit paid by an applicant is not refundable unless the agency or minister decides to waive the charge or fails to make a decision on the applicant’s FOI request within the statutory time limit, including any extension (reg 14)
  • the applicant is not entitled to have access to any document until all charges are paid (s 11A(1)(b)). This rule does not apply to a supervision charge unless the applicant has received an estimate of the charge (see [4.68] below).

4.50 As discussed below at [4.70], an applicant upon receiving a notice that a charge is payable may apply to the agency or minister for the charge to be corrected, reduced or waived. If the agency or minister decides not to exercise this discretion as requested, the applicant may seek internal review or IC review of that decision or make a complaint to the Information Commissioner.

Estimating a charge

4.51 The notice to an applicant under s 29(1) of an agency or minister’s preliminary assessment of a charge can include an estimated charge, if all steps necessary to make a decision on the request have not yet been taken (reg 9(2)). In practice, the preliminary assessment may be based on two elements:

  • a charge (based on the Charges Regulations) for work already done by the agency or minister, for example, in search and retrieval of documents
  • an estimated charge for work still to be done.

4.52 The estimate based on work still to be done can relate to any item listed in the Schedule to the Charges Regulations, for example:

  • a charge for further action that may be required to make a decision whether to grant access — such as search and retrieval, examination of documents, and consultation with affected third parties
  • a charge for providing access other than by personal inspection — such as photocopying, postage, and supervised inspection by agency personnel of inspection, hearing or viewing a document.

4.53 An estimated charge must be as fair and accurate as possible. An agency or minister should be mindful that an applicant may think an estimate is set unreasonably high so as to hinder the applicant from pursuing their FOI request.

4.54 Furthermore, as discussed at [4.23] above, the estimate should be based on an assumption that the agency or minister maintains a high quality record system that enables easy identification and location of documents.

4.55 It is prudent for an agency or minister in estimating a charge to be guided by previous experience in dealing with access requests of a similar nature. Where the agency or minister has not dealt with access requests of a similar nature, it is recommended that the agency or minister should obtain an estimate of the processing time by sampling the documents at issue.

Charges calculators

4.56 A commonly used tool for estimating charges under s 29 is the ‘charges calculator’. The charges calculator is a Microsoft Excel document that was originally developed by the Australian Government Solicitor. In particular, it contains a number of predetermined parameters based on assumptions as to how long an FOI request should take to process.

4.57 A charges calculator cannot produce an accurate estimate without accurate inputs and caution is required in adopting such a resource. Some documents may contain complex material, which might justify longer processing times, while others may be quite straight-forward, and would require significantly less time to review.

4.58 A common parameter that is included in the charges calculator is that the examination of relevant pages for decision making would take five minutes per page, and for exempt material, an additional five minutes per page. Unless the document at issue is particularly complex, it may be difficult for an agency or minister to adequately justify an estimate that it would take 10 minutes to process each page of the relevant documents.[11]

4.59 Where a decision is made to utilise the charges calculator to estimate a charge, the agency or minister should examine a sample of the relevant documents and adjust the parameters of the charges calculator accordingly. This is discussed further below.

Sampling

4.60 Generally, where a large number of documents have been identified as being within the scope of the request and the agency or minister decides that it is appropriate to impose a charge, there is an expectation that the agency or minister will obtain an accurate estimate by sampling a reasonable selection of the relevant documents.

4.61 A representative sample of at least 10% of the documents is considered as an appropriate sample size to assess the processing time.[12] This provides the agency or minister with an indication of the time that may be required for the decision-making process.

4.62 Agencies and ministers should assess the amount of time it would take to search and retrieve the documents held in the representative sample, as well as the amount of time it would take to examine, consider any exemptions that may apply and prepare a decision for those documents. The figures derived from the representative sample should then be used to calculate the total processing time for the documents falling within the scope of the applicant’s request. See Part 3 for further discussion on sampling in the context of practical refusals under s 24AA(1)(a) of the FOI Act.

Adjusting an estimated charge

4.63 After making a decision on a request where a charge was estimated under reg 9, an agency or minister is required to calculate the final charge based on the Charges Regulations (reg 10(1)). The new charge may be different from the estimated charge. If the new charge is less than the amount already paid by an applicant, a refund of the difference shall be made (reg 10(4)(a)). If the new charge is higher than an amount already paid, that payment shall be treated as a deposit on account of the charge (reg 10(4)(b)).

4.64 It is open to an agency or minister, while processing an FOI request, to give interim advice to an applicant that a charge may be higher than the estimated charge and reasons why it may be higher. It is good administrative practice to do so. The applicant can be invited to revise either the scope of the request or the preferred form of access, with a view to reducing the charge.

4.65 If the amount payable is substantially higher than the estimated charge, the agency or minister should also consider not imposing the full charge, especially if the underestimate is due to agency error, poor record keeping or inefficient FOI processing practices. This is consistent with the object of providing access at the lowest reasonable cost.

Deposits

4.66 An agency or minister, in notifying an applicant under s 29(1) of a liability to pay a charge or estimated charge, may require the applicant to pay a deposit (ss 29(1)(e), reg 13). The deposit cannot be higher than $20 if the notified charge is between $25 and $100, or 25% of a notified charge that exceeds $100 (reg 12(2)). The agency or minister can defer work on the applicant’s request until the deposit is paid or a decision is made to waive the charge following a request from the applicant. If a deposit is not paid within 30 days or such further period allowed by the agency or minister, the FOI request is taken to have been withdrawn (s 29(2)).

4.67 A deposit paid by an applicant does not have to be wholly or partly refunded unless the agency or minister:

  • decides to reduce (to an amount lower that than the deposit paid) or waive a charge following a request from the applicant under s 29(4)
  • fails to make a decision on the applicant’s FOI request within the statutory time limit, including any extension (reg 14), or
  • sets a final charge, after making a decision on the FOI request, that is lower than the amount already paid as a deposit (reg 10(4)(a)).

Collecting a charge

4.68 If an applicant is liable to pay a charge, the charge shall be paid before the applicant is given access to documents (s 11A(1)(b), reg 11(1)). An exception applies if the charge is for supervising an applicant’s personal inspection of documents or hearing or viewing an audio or visual recording (reg 11(2)). Payment of the charge cannot be required in advance of the inspection or viewing, unless the agency or minister has made a decision under reg 9(3) estimating the probable length of the period of inspection or viewing.

4.69 It is not clear, and has not yet been authoritatively resolved, whether a charge assessed by an agency under the Charges Regulations is a debt due to the Commonwealth that can be recovered by an agency. While the FOI Act states that an agency may decide ‘that an applicant is liable to pay a charge’ and an applicant may signify ‘agreement to pay the charge’ (s 29(1)), other elements necessary to create a debt due are either absent or uncertain. For example, neither the FOI Act nor the Charges Regulations declare that an assessed charge is a debt due to the Commonwealth; nor do they confer jurisdiction upon any court to enforce a debt; an assessed charge is not necessarily an ascertained or settled amount; and the FOI Act provides its own limited mechanism to ensure that assessed charges are paid before access is granted.

Back to Contents

Correction, reduction or waiver of charges

4.70 As outlined in [4.9]–[4.11] above, upon receiving a notice of preliminary assessment under s 29(1), it is open to the applicant to apply for a reduction or waiver of the charge. Where the applicant contends that a charge has been wrongly assessed, the central issue to be considered is whether relevant provisions of the Act and the Charges Regulations have been correctly understood and applied.[13] If an applicant contends that a charge should be reduced or waived, the agency or minister has a general discretion to decide that question. Two matters stipulated in the Act (s 29(5)) must be considered:

  • whether payment of the charge, or part of it, would cause financial hardship to the applicant or a person on whose behalf the application was made, and
  • whether giving access to the document in question is in the general public interest or in the interest of a substantial section of the public.

4.71 In addition to considering those two matters, an agency or minister may consider any other relevant matter, and in particular should give genuine consideration to any contention or submission made by an applicant as to why a charge should be reduced or waived. An agency or minister cannot fetter the discretion conferred by s 29(4) of the Act by adopting a rule that confines the matters that will be considered or the circumstances in which a charge will be reduced or waived. For example, where an applicant agreed to pay a charge in a previous FOI request, an agency or minister cannot rely on this fact to impose a charge for all subsequent FOI requests by the same applicant without considering the merits of each request for reduction or waiver.[14]

4.72 Moreover, an agency or minister should always consider whether disclosure of a document would advance the objects of the Act, even though an applicant has not expressly framed a submission on that basis. The objects of the Act include promoting better informed decision making, and increasing scrutiny, discussion, comment and review of the Government’s activities (s 3).

4.73 An agency or minister is also entitled to consider matters that weigh against those relied upon by an applicant. By way of example, an agency may decide that it is appropriate to impose an FOI charge where:

  • the applicant can be expected to derive a commercial or personal benefit or advantage from being given access and it is reasonable to expect the applicant to meet all or part of the FOI charge[15]
  • the documents are primarily of interest only to the applicant and are not of general public interest or of interest to a substantial section of the public[16]
  • the information in the documents has already been published by an agency and the documents do not add to the public record,[17] or
  • the applicant has requested access to a substantial volume of documents and significant work would be required to process the request.

4.74 An agency or minister may waive a charge wholly or in part, but where the charge is only partially waived, it should fully explain and justify the reduced charge. If an agency or minister accepts that disclosure of a document would be in the general public interest or that there would be financial hardship to the applicant, it may be difficult for it to justify why a charge has been reduced instead of waived in full.[18] This is discussed further below.

Financial hardship

4.75 Whether payment of a charge would cause financial hardship to an applicant is primarily concerned with the applicant’s financial circumstances and the amount of the estimated charge. Financial hardship means more than an applicant having to meet a charge from his or her own resources. The decision in ‘AY’ and Australian Broadcasting Corporation referred to the definition of financial hardship in guidelines issued by the Department of Finance for the purpose of debt waiver decisions[19]:

Financial hardship exists when payment of the debt would leave you unable to provide food, accommodation, clothing, medical treatment, education or other necessities for yourself or your family, or other people for whom you are responsible.

4.76 Different hardship considerations may apply if the request is made by an incorporated body or an unincorporated association. [20] The mere fact that costs for FOI requests have not been budgeted for has been held to be a commercial decision, rather than a matter of a lack of funds. [21]

4.77 An applicant relying on this ground could ordinarily be expected to provide some evidence of financial hardship.[22] For example, the applicant may rely upon (and provide evidence of) receipt of a pension or income support payment; or provide evidence of income, debts or assets. However, an agency should be cautious about conducting an intrusive inquiry into an applicant’s personal financial circumstances. Agencies need to have regard to the policy of the Privacy Act, which is to minimise the collection of personal information to what is required for the particular function or activity. For example, in this case, to make a decision as to whether to waive or reduce a charge.

4.78 Where an applicant demonstrates that payment of the charge would cause financial hardship, it may be difficult for the agency to justify why the imposition of a charge would be appropriate.[23]

Public interest

4.79 The Act requires an agency or minister to consider ‘whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public’ (s 29(5)(b)).[24] This test is different to and to be distinguished from public interest considerations that may arise under other provisions of the FOI Act.

4.80 Specifically, the public interest test for waiver in s 29(5)(b) is different to the public interest test in s 11A(5) that applies to conditionally exempt documents. Nor will s 29(5)(b) be satisfied by a contention that it is in the public interest for an individual with a special interest in a document to be granted access to it, or that an underlying premise of the FOI Act is that transparency is in the public interest.

4.81 An applicant relying on s 29(5)(b) should identify or specify the ‘general public interest’ or the ‘substantial section of the public’ that would benefit from this disclosure. This may require consideration both of the content of the documents requested and the context in which their public release would occur. Matters to be considered include whether the information in the documents is already publicly available, the nature and currency of the topic of public interest to which the documents relate, and the way in which a public benefit may flow from the release of the documents.[25]

4.82 There is no presumption that the public interest test is satisfied by reason only that the applicant is a member of Parliament, a journalist or a community or non-profit organisation. It is necessary to go beyond the status of the applicant and to look at other circumstances. The fact that a media organisation may derive commercial benefit from publication of a story based on an FOI request is a relevant consideration, but is not alone a basis for declining to reduce or waive a charge.[26] Nor is an applicant required to show that they will publish the document,[27] although the applicant may be expected to draw a link between being granted access to the documents and a derivative benefit to either the general public interest or a substantial section of the public.

4.83 The ‘public interest’ is a concept of wide import that cannot be exhaustively defined. When considering the public interest, it is important that the agency or minister directs its attention to the advancement or the interest or welfare of the public, and this will depend on each particular set of circumstances.[28] Further, the public interest is not a static concept confined and defined by strict reference points.[29] The following examples nevertheless illustrate circumstances in which the giving of access may be in the general public interest or in the interest of a substantial section of the public:

  • The document relates to a matter of public debate, or a policy issue under discussion within an agency, and disclosure of the document would assist public comment on or participation in the debate or discussion.[30]
  • The document relates to an agency decision that has been a topic of public interest or discussion, and disclosure of the document would better inform the public as to why or how the decision was made, including highlighting any problems or flaws that occurred in the decision-making process.[31]
  • The document would add to the public record on an important and recurring aspect of agency decision making.[32]
  • The document is to be used for research that is to be published widely or that complements research being undertaken in an agency or elsewhere in the research community.[33]
  • The document is to be used by a community or non-profit organisation in preparing a submission to a parliamentary or government inquiry, for example, on a law reform, social justice, civil liberties, financial regulation; or environmental or heritage protection issue.[34]
  • The document is to be used by a member of Parliament in parliamentary or public debate on an issue of public interest or general interest in the member’s electorate.[35]
  • The document is to be used by a journalist in preparing a story for publication that is likely to be of general public interest.[36]

4.84 In applying those and related examples, an agency or minister may also consider whether the range or volume of documents requested by an applicant could be considered reasonably necessary for the purpose of contributing to public discussion or analysis of an issue. If an agency or minister relies on this ground to only partially reduce or decline to waive a charge, it must consider the number of documents within the scope of the FOI request and the cost of processing the FOI request and compare this against the subject matter of the FOI request and its public interest value.[37]

4.85 The decision in MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information)[38] explains that an agency should compare the number of documents within the scope of an FOI request and the cost of processing the request against the subject matter of the request in deciding whether to exercise its discretion to waive a charge on public interest grounds.[39]

4.86 Where an agency accepts that giving access to the document in question would be in the general public interest, but decides not to waive the charge, the agency should adequately justify why it is appropriate for the charge to be imposed in the circumstances. The agency or minister should also consider whether the imposition of the charge would be at odds with the lowest reasonable cost objective in s 3.

4.87 An agency or minister cannot exercise the discretion in s 29(4) solely on the basis that, if the charge is not paid in full, the applicant will not be meeting the reasonable cost of processing their FOI application.[40] Nor should an agency or minister take into account whether an applicant may use a document in a manner that may lead to misinterpretation or misunderstanding in public debate.[41]

Other grounds for reduction or waiver

4.88 An agency or minister has a general discretion to reduce or not impose a charge, and this discretion is not limited to financial hardship and public interest grounds. The following non-exhaustive list of examples illustrates circumstances in which it may be appropriate to reduce or not impose a charge:

  • The cost of calculating and collecting a charge might exceed the cost to the agency of processing the request.[42]
  • A member of Parliament has requested access on behalf of a constituent to a document containing personal information, for which the constituent would not have been required to pay a charge.
  • The applicant needs the document for a pending court or tribunal hearing.
  • Giving access to the document could assure the agency that it has accorded procedural fairness to the applicant in an administrative proceeding the agency is conducting.
  • The document is required for research purposes for which no commercial benefit will flow to the applicant.[43]
  • Reduction or waiver of the charge would enhance the agency-client relationship.
  • The agency was able to identify and retrieve the document easily and at marginal cost.[44]
  • The Information Commissioner or AAT has decided in similar circumstances that charges should not be imposed.

4.89 It may also be appropriate to reduce or waive a charge if the applicant responds to a charge notice by revising the terms of their request so that it requires less work to process.[45] However, where an agency or minister decides only to reduce rather than waive a charge in these circumstances, it will generally be appropriate to provide the applicant with a re-calculated charge estimate before making a final decision about the charge. Given the object of the FOI Act of providing prompt access at the lowest reasonable cost to applicants, agencies should be particularly careful to justify imposing a charge where it has been previously decided that a practical refusal reason exists, but either through consultation or on IC review, the practical refusal reason no longer exists or is found not to exist.[46]

Back to Contents

Application of moneys received

4.90 Charges imposed under the FOI Act are prescribed as a received amount for the purposes of s 27 of the Public Governance, Performance and Accountability Rule 2014. Agencies may retain such charges under s 74(1) of the Public Governance, Performance and Accountability Act 2013. For further details see Resource Management Guide No. 108: Receipts collected by non-corporate Commonwealth entities, dated June 2014, which is available on the website of the Department of Finance at www.finance.gov.au.

Back to Contents

Review of decision to charge

4.91 A decision under the FOI Act declining to reduce a charge or not impose a charge is an access refusal decision and therefore subject to internal review, IC review and review by the AAT (ss 54, 54L and 57A). Each is a merit review process, in which the review authority will review whether a charge was correctly assessed, whether the charge should be reduced or waived on financial hardship or public interest grounds, or more generally whether the discretion to impose a charge should be exercised differently. For further guidance on internal review and review by the Information Commissioner, see Parts 9 and 10 of these Guidelines.

Notifying the internal review applicant of an affirmed charges decision

4.92 The FOI Act does not set a time limit for an applicant to respond after the applicant has contested a charge and the agency has carried out an internal review. If the applicant fails to pay the new or reaffirmed charge or cannot be contacted, the request could be on hand indefinitely.

4.93 Good administrative practice would have the agency ask the applicant to respond to the written notice of an internal review decision (s 54C(4)) within a specified timeframe by doing one of the following:

  • paying the charge or any deposit specified by the agency
  • seeking an IC review of the charge, or
  • withdrawing the FOI request.

4.94 The agency should advise the applicant that if they do not receive a response within the specified timeframe, the FOI request will be taken to have been withdrawn. While the FOI Act does not specify a timeframe for the applicant’s response, thirty days can be regarded as a reasonable period.

Back to Contents

Footnotes

[1] An assessment of charges based on the maximum rates outlined in the Schedule to the Charges Regulations can be consistent with the lowest reasonable cost objective: see McBeth and Australian Agency for International Development [2012] AICmr 24 [15].

[2] Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65 [31].

[3] Fingal Head Community Association Inc and Department of Infrastructure and Regional Development [2014] AICmr 70.

[4] ‘M’ and Department of Agriculture, Fisheries and Forestry [2013] AICmr 24 [25]–[26].

[5] See Chapter 12 of the Information Commissioner’s APP Guidelines at www.oaic.gov.au.

[6] [2014] AICmr 87 [12]–[13].

[7] ‘CK’ and Department of Human Services [2014] AICmr 93.

[8] See https://www.legislation.gov.au/Details/F2010L03352

[9] Australian Pain Management Association and Department of Health [2014] AICmr 49 [35]. See also the discussion of administrative access in Part 3 of these Guidelines.

[10] This is reflected in s 3(4) of the FOI Act, which provides that the functions and powers given under the Act are to be performed or exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

[11] ‘GD’ and Department of the Prime Minister and Cabinet [2015] AICmr 46 [21].

[12] For example, in Tager and Department of the Environment [2014] AICmr 59 [24], a 10% sample of the documents was used to estimate the cost of processing the applicant’s request.

[13] For example, see Tager and Department of the Environment [2014] AICmr 59; ‘DL’ and Department of Immigration and Border Protection [2014] AICmr 119.

[14] Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65.

[15] However, the fact that the document would form the basis of a journalistic article is not enough to demonstrate that the applicant can be expected to derive a commercial or personal benefit from being given access to the documents, as not all articles researched will be written or published: see Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65.

[16] For example, see Re Tennant and Australian Broadcasting Corporation [2014] AATA 452.

[17] For example, see Briggs and Department of the Treasury (No. 2) [2012] AICmr 17 [16]-[18] (draft version of a public report); Tager and Department of the Environment [2014] AICmr 59 (emails and draft plans on a topic on which a great deal of other information was publicly available); and Re Tennant and Australian Broadcasting Corporation [2014] AATA 452 (unlikely that documents requested would add to information already on the public record).

[18] See MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information) [2015] AATA 584; Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65; and ’CK’ and Department of Human Services [2014] AICmr 83.

[19] [2014] AICmr 7 [20]. The definition has been retained in Finance guidelines that replace those referred to in the decision, see www.finance.gov.au/resource-management/discretionary-financial-assistance/waiver-of-debt-mechanism/information-for-applicants-debt-waiver.html.

[20] Australian Pain Management Association and Department of Health [2014] AICmr 49.

[21] Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65.

[22] For example, see ‘CK’ and Department of Human Services [2014] AICmr 83 [13]-[14]; ‘AY’ and Australian Broadcasting Corporation [2014] AICmr 7 [18]–[24]; and ‘DL’ and Department of Immigration and Border Protection [2014] AICmr 119 [21]-[25].

[23] For example, in ‘CK’ and Department of Human Services [2014] AICmr 83,the Acting Freedom of Information Commissioner was satisfied that payment of a charge would cause financial hardship to the applicant and decided that the charge should be waived in full.

[24] This question is considered in a number of IC review and AAT decisions. See, for example, Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2016] AICmr 54; Rita Lahoud and Department of Education and Training [2016] AICmr 5; Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65; ‘DL’ and Department of Immigration and Border Protection [2014] AICmr 119, MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information) [2015] AATA 584.

[25] Re Tennant and Australian Broadcasting Corporation [2014] AATA 452 [21].

[26] Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65.

[27] Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65 [22].

[28] McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 [9].

[29] Wood; Secretary, Department of Prime Minister and Cabinet and (Freedom of Information) [2015] AATA 945 [54].

[30] Such as Australia’s humanitarian refugee resettlement program and deaths in immigration detention; see Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65; and Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2014] AICmr 100.

[31] Such as use of Commonwealth resources and expenditure of public funds; see MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of information) [2015] AATA 584; and Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2016] AICmr 54.

[32] Such as debt waiver; see ‘CF’ and Department of Finance [2014] AICmr 73; and ‘CW’ and Department of Finance [2014] AICmr 99.

[33] McBeth and Australian Agency for International Development [2012] AICmr 24; and Knapp and Australian Securities and Investments Commission [2014] AICmr 58.

[34] See Fingal Head Community Association Inc and Department of Infrastructure and Regional Development [2014] AICmr 70; and Australian Pain Management Association and Department of Health [2014] AICmr 49.

[35] See MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information) [2015] AATA 584; and Fletcher and Department of Broadband, Communications and the Digital Economy (No. 3) [2012] AICmr 15.

[36] Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65; and Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2016] AICmr 54.

[37] MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information) [2015] AATA 584 [30].

[38] [2015] AATA 584 [30].

[39] The Tribunal compared the number of documents identified (88 documents) and the cost of processing the FOI request ($2,291.36) against what the FOI request related to (a proposed $1 billion (plus) government (taxpayer) funded infrastructure project) and found that giving access to the documents in question would be in the general public interest or at the very least, in the interest of a substantial section of the public.

[40] Baljurda Comprehensive Consulting Pty Ltd and the Australian Agency for International Development [2011] AICmr 8 [28].

[41] Real Health Care Reform Pty Ltd and Department of Health and Ageing [2013] AICmr 60 [28].

[42] Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65 [31].

[43] Knapp and Australian Securities and Investments Commission [2014] AICmr 58 [41].

[44] Encel and Secretary, Department of Broadband, Communications and the Digital Economy [2008] AATA 72 [100].

[45] Rita Lahoud and Department of Education and Training [2016] AICmr 5 [32]-[33].

[46] Rita Lahoud and Department of Education and Training [2016] AICmr 5 [38].

Back to Contents